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Published online by Cambridge University Press: 31 July 2008
This article attempts an overview of the application of the law of charities to religion. Charity law is currently subject to revision. The advancement of religion has been one of the traditional charitable purposes defined as such in the common law. In this area of law both the courts and the Charity Commission have applied a neutral approach toward all religious denominations. This approach is in principle consistent with the content of the Human Rights Act 1998. Nevertheless the growth of religious pluralism in society and the appearance of new religions and groups generate many doubts about the definition of religion as charity. On the one hand, the courts have offered a theistic definition of religion, which is not applicable to all religious groups. On the other, in every charitable purpose some element of public benefit must be present. For religious purposes the courts assume the presence of a public benefit unless the contrary is shown, but it is not clear that all religious practices are beneficial to the community. The aim of this article is to promote a discussion about the definition of religion as a charitable purpose, to identify the problems connected with the growth of religious pluralism, and to offer some remarks about the impact of the Human Rights Act 1998 on the law of charities.
1 Sheridan, LA, Keeton, GW, The Modern Law of Charities, (3rd ednCardiff: University College, Cardiff, Press 1983), p 9.Google Scholar
2 A synthesis of the main differences between the British system and continental systems can be found in Luxton, P, the Law of Charities (Oxford: Oxford University Press 2001), pp 21–22.Google Scholar
3 Among othe documents, see Report of the Committee on the Law and Practice Relating to Charitable Trusts (1952) Cmd 8710 (Nathan Report): Charity Law adn Voluntary Organisations (London: National Council of Social Service, 1976) (Goodman Report);Google ScholarEfficiency Scrutiny of the Supervision of Charities (London: HMSO, 1987) (Woodfield Report);Google ScholarWhite Paper Charities: A Framework for the Future CM 694 (London: HMSO, 1989):Google ScholarMeeting the Challenge of Change: Voluntary Action into the 21st Century. Report of the Commission on the Future of the Voluntary Sector (London: NCVO, 1996) (Deakin Commission);Google Scholarfor the Public benefit? a Consultation Document on Charity Law Reform (London: NCVO, 2001);Google Scholar to Charity Law: The Case for Reform (London: Law Society's Law Reform Committee, 2002);Google Scholar and Charities and Non-for-Profits: A Modern Legal Framework (London; Home Office, 2003).Google Scholar
4 Likewise, on 2 June 2004, the Government of Scotland Published the Draft Chraities and Trustee Investment (Scotland) Bill. The Project was subject to public and private consultation until 25 August 2004 with the aim of elaborating a final version of the Bill to be introduced to the Scottish Parliament. The Bill was introduced to Parliament on 15 November 2004, was passed on 20 June 2005, and received the Royal Assent on 14 July 2005.Google Scholar
5 The Joint Committee Published the Report of its recommendations on 30 September 2004: see http://www.homeoffice.gov.uk/comrace/active/charitylaw/.Google Scholar
6 See the web site http://www.homeoffice.gov.uk/comrace/active/charitylaw/ (15 September 2005).Google Scholar
7 See Barker, CR, ‘Religion and Charity Law’ (1999) Juridical Review, pp 310–313.Google Scholar
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9 This is the text of the Charities Bill, as amended in Committee in the House of Lords on 12 July 2005.Google Scholar
10 The content of the preamble relative to charitable purposes was the following: ‘The relief of aged, impotent and poor people; the maintenance of sick and maimed soldiers and mariners, schools of learning, free schools and scholars of universities; the repair of bridges, havens, causeways, churches, sea banks and highways; the education and preferment of orphans; the relief, stock or maintenance of houses of correction; marriages of poor maids; supportation, aid and help of young tradesmen, handicraftsmen and persons decayed; the relief or redemption of prisoners or captives and the aid or ease of any poor inhabitants concerning payments of fifteens, setting out of soldiers, and other taxes:’, see the Statute of Charitable Uses 1601 (43 Eliz 1, c 4). This Act was repealed by the Mortmain and Charitable Uses Act 1888 (51 & 52 Vict, c 42), but the preamble was expressly maintained in force. With the repeal of this Act of 1888 by the Charities Act 1960 (c 58), it is implicit that the preamble is no longer in force, though the fact of the matter is that it never had legal force in its own right: see Halsbury's Laws of England, vol 5(2),Google ScholarCharities, (4th edn, London: Butterworths 1975), p 9.Google ScholarPubMed
11 Thus, for example, in Gilmour v Coats, the House of Lords stated that, from the beginning, the courts have followed the practice of referring to the Charitable Uses Act 1601 to determine the purposes susceptible to being defined as charitable: ‘When I speak of the law of charity, I mean that law which the Court of Chancery and its successor, the High Court of Justice, has evolved from a consideration of the Statute 43 Eliz, c 4. It is a commonplace that that statute, as its title implied, was directed not so much to the definition of charity as to the correction of abuses which had grown up in the administration of certain trusts of a charitable nature. But from the beginning it was the practice of the court to refer to the preamble of the statute in order to determine whether or not a purpose was charitable. The objects there enumerated and all other objects which by analogy “are deemed within its spirit” and “intendment” and no other objects are in law charitable. That is settled and familiar law’; Gilmour v Coats [1949] AC 426 at 442–43, [1949] 1 All ER 848 at 852, HL, per Lord Simonds.Google Scholar
12 ‘The existing practice of developing the legal meaning of charity by reference to a list of activities considered charitable in Tudor times (the notorious preamble to the Statute of Charitable Uses 1601) is, with reservations, widely accepted as still capable of meeting the needs of the last decade of the 20th Century – not least on account of its flexibility’: A Longley, ‘Religion as Charity: Some Reflections' in (1992/93) 1, Issue 2, Charity Law and Practice Review, p 87.Google Scholar
13 Commissioners for Special Purposes of the Income Tax v Pemsel, [1891] AC 531 at 583, HL, per Lord Macnaghten. Prior to this classification, Sir Samuel Romilly had formulated a practically identical definition inGoogle ScholarMorice v Bishop of Durham (1805) 10 Ves 522 at 531. Specifically, he had identified charity with the following four ends: relief of the indigent; advancement of learning; advancement of religion; advancement of objects of general public utility. On the evident parallelism between the two definitions,Google Scholar see Maurice, SG and Parker, DB, Tudor on Charities (7th edn, London: Sweet & Maxwell 1984), pp 6–7.Google Scholar
14 As the House of Lords has indicated in the case of Pemsel, ‘the object of that Statute was merely to provide new machinery for the reformation of abuses in regard to charities’: Commissioners for Special Purposes of the Income Tax v Pemsel, [1891] AC 531 at 581, per Lord Macnaghten.Google Scholar
15 The quotation is taken from Blakeney, M, ‘Sequestered Piety and Charity—A Comparative Analysis’, in (1981) 2 Journal of Legal History, p 210.CrossRefGoogle Scholar This same paragraph can also be found in Crowther, CE, Religious Trusts, their Development. Scope and Meaning (Oxford: George Ronald 1954), p 9;Google Scholar and Picarda, H, The Law and Practice Relating to Charities (London: Butterworths 1977), p 54.Google Scholar The three authors reject the position of FH Newark, according to which religion was excluded from the preamble due to the actions mentioned therein being of a different nature: see Newark, FH, ‘Public Benefit and Religious Trusts’ in (1946) 62 LQR 234.Google Scholar However, Brady, JC, ‘Some Problems Touching the Nature of Bequests for Masses in Northern Ireland’ in (1968) 19 Northern Ireland Legal Quarterly, p 365, is found to be in agreement with Newark's thesis.Google Scholar
16 ‘Though this is no Charitable Use mentioned in the Statute; yet…it is within the Equity of the Act’: Pember v Kington Inhabitants (1639) Toth 34.Google Scholar See also Jones, G, History of the Law of Charity, 1532–1827 (London: Cambridge University Press 1969), pp 34–35.CrossRefGoogle Scholar
17 See Tierney, B, Medieval Poor Law: A Sketch of Canonical Theory and its Application in England (Berkeley: California University Press 1959).Google Scholar
18 Gilmour v Coats [1949] AC 426 at 458–459, [1949] 1 All ER 848 at 862, HL, per Lord Reid.Google Scholar
19 Bowman v Secular Society Ltd [1917] AC 406 at 448, HL, per Lord Parker of Waddington.Google Scholar
20 His exact words are: ‘the law of England has always shown favour to gifts for religious purposes. It does not now in this matter prefer one religion to another. It assumes that it is good for man to have and to practise a religion’: Gilmour v Coats [1949 AC 426 at 458–459, [1949] 1 All ER 848 at 862.Google Scholar
21 The context of this statement and its exact content is the following: ‘The Court is, I think, entitled to assume that some benefit accrues to the public from the attendance at places of worship of persons who live in this world and mix with their fellow citizens. As between different religions the law stands neutral, but it assumes that any religion is at least likely to be better than none': Neville Estates Ltd v Madden [1962] Ch 832 at 853, [1961] 3 All ER 769 at 781, per Cross J (emphasis added).Google Scholar
22 See Hill, M, ‘Church Autonomy in the United Kingdom’ in Robbers, G (ed), Church Autonomy (Frankfurt am Main: Peter Lang 2001), pp. 267–283.Google Scholar
23 See Edge, PW, ‘Charitable Status for the Advancement of Religion: an Abolitionist's View’ in (1995/1996) 3, Issue 1, Charity Law and Practice Review, pp 29–35.Google Scholar His stance has been criticised by King, M, an author in favour of the inclusion of religion in the legal framework of charities: see ‘Charitable Status for the Advancement of Religion— The Proponent's View’ in (1995/1996) 3, Issue 3, Charity Law and Practice Review, pp 179–182.Google Scholar
24 See Barker, CR, ‘Religion and Charity Law’, (1999) Juridical Review, pp 303–315.Google Scholar
25 See Dunn, A and Riley, CA, ‘Supporting the Not-for-Profit Sector: The Governments's Review of Charitable and Social Enterprise’ (2004) 67 (4) Modern Law Review, pp 642–643.CrossRefGoogle ScholarHowever, in a prior document of 1989, the Government White Paper ‘Charities: A Framework for the Future’, whether to maintain religion among the characteristic purposes of charity law or not was expressly considered, an affirmative conclusion being reached:Google Scholar see Longley, A, ‘Religion as Charity: Some Reflections’, in (1992/1993) 1, Issue 2, Charity Law and Practice Review, pp 87–93.Google Scholar
27 An example of the definition of ‘religion’ on the part of the Charity Commission may be found in the Decision of the Charity Commissioners for England and Wales made on 17 November 1999; Application for Registration as a Charity by the Church of Scientology (England and Wales: see http://www.charity-commission.gov.uk).Google Scholar
28 For English law, see Bradney, A, Religious, Rights and Laws (Leicester: Leicester University Press 1993), pp 124–126;Google ScholarHall, CG, ‘Aggiornamento: Reflections Upon the Contemporary Legal Concept of Religion’ in (1996) 27 Cambrian Law Review, pp 7–32;Google ScholarEdge, PW, Legal Responses to Religious Difference (Hague/London: Kluwer Law International 2001), pp 5–16.Google Scholar
29 The institution or act by means of which possessions, properties or goods were assigned to ‘superstitious uses to be defined by scholars, according to Boyle, as ‘one which has for its object the propagation of the rites of a religion not tolerated by the law’. The definition, as scholars point out, is not exhaustive but serves as a working definition:Google Scholar see Crowther, CE, Religious Trusts, their Development, Scope and Meaning (Oxford: George Ronald 1954), p 40;Google ScholarPicarda, H, The Law and Practice Relating to Charities (London: Butterworths 1977), p 76.Google Scholar On this legal category, see Crowther, CEop cit pp 40–52; Bourchier-Chilcott, T, ‘Superstitious Uses’ in (1920) 36 LQR 152–157; Hogg, JE, ‘Roman Catholic Bequests for Masses: The House of Lords' Decision’ in (1920) 36 LQR 53–57.Google Scholar
30 For a description of this historical evolution, see the decision in Bowman v Secular Society Ltd [1917] AC 406 at 448–450, HL, per Lord Parker of Waddington.Google Scholar A much more in-depth and detailed analysis can be found in Jones, G, History of the Law of Charity 1532–1827 (London: Cambridge University Press 1969), passim.CrossRefGoogle Scholar
31 Bourne v Keane [1919] AC 815, HL.Google Scholar
32 Thornton v Howe (1862), 31 Beav 14.Google Scholar
33 Thornton v Howe (1862), 31 Beav 14.Google Scholar
34 See, among others, Gilmour v Coats [1949] AC 426 at 459, [1949] 1 All ER 848 at 862, HL, per Reid, Lord; Neville Estates Ltd. v Madden, [1962] Ch 832 at 853, [1961] 3 All ER 769 at 781, per Cross J; Re Watson, decd [1973] 3 All ER 678 at 688, [1973] 1 WLR 1472 at 1482, per Plowman J; Varsani v Jesani, [1999] Ch 219 at 235, [1998] 3 All ER 273 at 285, CA, per Morritt LJ. The above statements refer to charity law; in other sectors of the legal system, such as family law, the neutrality of the courts with respect to the different religions took much more time to become consolidated:Google Scholar see Hamilton, C, Family, Law and Religion (London: Sweet & Maxwell 1995), pp 178–214.Google Scholar
35 Thornton v Howe (1862), 31 Beav 14, per Sir John Romilly MR.Google Scholar
36 Bowman v Secular Society Ltd [1917] AC 406 at 448, HL, per Lord Parker of Waddington.Google Scholar
37 Re South Place Ethical Society [1980] 1 WLR 1565.Google Scholar
38 Re South Place Ethical Society [1980] 1 WLR 1565 at 1571–1572. For the definition of ‘worship’, Dillon, J cites R v Registrar General, Ex parte Segerdal [1970] 2 QB 697, [1970] 3 All ER 886, CA: ‘In R. v Registrar General, Ex parte Segerdal … which was concerned with the so-called Church of Scientology, Buckley LJ said, at p 709 [and at p 892]: “Worship I take to be something which must have some at least of the following characteristics: submission to the object worshipped, veneration of that object, praise, thanksgiving, prayer or intercession”’.Google Scholar
39 Re South Place Ethical Society [1980] 1 WLR 1565 at 1573.Google Scholar
40 R v Registrar General, Ex parte Segerdal [1970] 2 QB 697, [1970] 3 All ER 886, CA.Google Scholar
41 See the reference made to this case by the High Court in Re South Place Ethical Society; it is also used by the Charity Commission in its decisions: see the Decision of the Charity Commissioners for England and Wales made on 17 November 1999: Application for Registration as a Charity by the Church of Scientology (England and Wales) (see note 27 above).Google Scholar
42 R v Registrar General, Ex parte Segerdal [1970] 2 QB 697 at 708, [1970] 3 All ER 886 at 890, CA.Google Scholar
43 R v Registrar General, Ex parte Segerdal [1970] 2 QB 697 at 707, [1970] 3 All ER 886 at 889–890.CA.Google Scholar
44 In one of the main cases of the United States Supreme Court on the definition of ‘religion’, United States v Seeger 380 US 163 (1965), those beliefs that in the life of their holders have an equivalent position to that of religion in the life of the faithful are considered as being equivalent to religious beliefs: ‘belief in a relation to a Supreme Being is whether a given belief that is sincere and meaningful occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God of one who clearly qualifies for the exemption: 380 US 163 at 165–166 (1965). In the case of the High Court of Australia, the leading case in this matter is Church of the New Faith v Commissioner of Payroll Tax (1982–1983) 154 CLR 120, in which charitable status is granted to the Church of Scientology and its religious nature is acknowledged. For a brief summary of the doctrine of both tribunals on this theme,Google Scholar see Sadurski, W, ‘On Legal Definitions of Religion’, in (1989) 63 Australian Law Journal, pp 834–843.Google Scholar
45 See Bradney, A, Religious, Rights and Laws (Leicester: Leicester University Press 1993), pp 124–126;Google ScholarQuint, F and Spring, T, ‘Religion, Charity Law and Human Rights’ in (1999) 5, Issue 3, Charity Law and Practice Review, pp 172–186;Google ScholarBromley, K, ‘The Definition of Religion in Charity Law in the Age of Fundamental Human Rights’ in (2000) 3, Issue 1, p 1 and following;Google ScholarEdge, PW and Loughrey, JM, ‘Religious Charities and the Juridification of the Charity Commission’ in (2001) 21 Legal Studies, pp 43–47, 51–64.CrossRefGoogle Scholar
46 See Quint, F and Spring, T, ‘Religion, Charity Law and Human Rights’, op cit p 162.Google Scholar
47 Another case is that relative to paganism, which the Charity Commission has denied charitable status: see Edge, PW, Legal Responses to Religious Difference (Hague/London: Kluwer Law International 2001), pp 147, 351.Google Scholar
48 The following statements formulated in 1993 are highly significant: ‘Examples of religions which might fail to meet the morality test are rare. However, one possible instance is Scientology. Academic commentators are all agreed in thinking that Scientology could not attain a charitable status’: Bradney, A, Religious, Rights and Laws, op cit p 122. On cases of jurisprudence relative to the Church of Scientology in England, see PW Edge, Legal Responses to Religious Difference, op cit pp 405–422.Google Scholar
49 In a similar sense, see Edge, PW and JM Loughrey, ‘Religious, Charities and the Juridification of the Charity Commission’, op cit pp 44–47.Google Scholar
50 Our exposition of the relevant case law is limited to the basic cases on this theme, identified as such by academic scholars: see Picarda, H, The Law and Practice Relating to Charities (London: Butterworths 1977), pp 57–58;Google ScholarEdge, PW, Legal Responses to Religious Difference, op cit pp 151–152;Google ScholarLuxton, P, The Law of Charities (Oxford: Oxford University Press 2001), pp 129–130.Google Scholar
51 Keren Kayemeth Le Jisroel Ltd v Inland Revenue Comrs [1931] 2 KB 465, CA.Google Scholar
52 [1931] 2 KB 465 at 477, CA.Google Scholar
53 United Grand Lodge of Ancient Free and Accepted Masons of England v Holborn Borough Council [1957] 3 All ER 281 at 285, [1957] 1 WLR 1080 at 1090, DC, per Donovan J.Google Scholar
54 National Deposit Friendly Society Trustees v Skegness Urban District Council [1959] AC 293 at 321–322, [1958] 2 All ER 601 at 613–614, HL.Google Scholar
55 The statements of academic scholars in this respect are clear; see Picarda, H, The Law and Practice Relating to Charities, op cit p 16;Google ScholarSheridan, LA and Keeton, GW, The Modern Law of Charities (3rd ednCardiff: University College Cardiff Press 1983), p 32;Google ScholarMaurice, SG and Parker, DB, Tudor on Charities (7th ednLondon: Sweet & Maxwell 1984), p 4.Google Scholar
56 Re Compton [1945] Ch 123 at 128–129, [1945] 1 All ER 198 at 200–201, CA, per Lord Greene, MR.Google Scholar
57 ‘It is a trite saying that the law is life, not logic. But it is, I think, conspicuously true of the law of charity that it has been built up not logically but empirically. It would not, therefore, be surprising to find that, while in every category of legal charity some element of public benefit must be present, the court had not adopted the same measure in regard to different categories, but had accepted one standard in regard to those gifts which are alleged to be for the advancement of education and another for those which are alleged to be for the a advancement of religion, and it may be yet another in regard to the relief of poverty’: Gilmour v Coats [1949] AC 426 at 448–449, [1949] 1 All ER 848 at 856, HL, per Lord Simonds (emphasis added).Google Scholar
58 ‘Where the purposes in question are of a religious nature – and, in my opinion, they clearly are here – then the court assumes a public benefit unless the contrary is shown’: Re Watson decd [1973] 3 All ER 678 at 688, [1973] 1 WLR 1472 at 1482, per Plowman J.Google Scholar
59 Gilmour v Coats [1949] AC 426, [1949] 1 All ER 848, HL; Re Hetherington decd [1990] Ch 1, [1989] 2 All ER 129. See Sherrin, CH, ‘Public Benefit in Trusts for the Advancement of Religion’ in (1990) 32 Malaya Law Review, pp 114–125.Google Scholar
60 See Picarda, H, The Law and Practice Relating to Charities, op cit pp 64–76; LA Sheridan and GW Keeton, The Modern Law of Charities, op cit pp 72–90;Google ScholarEdge, PW, Legal Responses to Religious Difference (Hague/London: Kluwer Law International 2001), pp 154–158;Google ScholarLuxton, P, The Law of Charities, op cit pp 130–132.Google Scholar
61 ‘For purposes falling within the advancement of religion head, the issue of public benefit looks at a cross-section of society in terms of access to participation. Here public benefit is served where public access is permitted (irrespective of whether that access is used in practice) or where the charity provides for or maintains premises or services to which there is public admission, even if only a handful of the public takes advantage of the admission’: A Dunn and CA Riley, ‘Supporting the Notfor-Profit Sector: The Government's Review of Charitable and Social Enterprise’ in (2004) 67(4) Modern Law Review, p 640 (notes omitted).Google Scholar
62 For the Draft Charities Bill presented to Parliament on 20 May 2004, see Dunn, A and CA Riley, ‘Supporting the Not-for-Profit Sector: The Government's Review of Charitable and Social Enterprise’, op cit pp 639–643.Google Scholar
63 See, among others, Cumper, P, ‘Religious Organisations and the Human Rights Act 1998’ in PW Edge and G Harvey, Law and Religion in Contemporary Society (Aldershot: Ashgate 2000), pp 69–90;Google ScholarHill, M, ‘The Impact for the Church of England of the Human Rights Act 1998’ in (2000) 5 Ecc LJ 432–433; J Rivers, ‘From Toleration to Pluralism: Religious Liberty and Religious Establishment under the United Kingdom's Human Rights Act’Google Scholar in Ahdar, RJ, Law and Religion (Aldershot: Ashgate 2000), pp 133–161;Google ScholarLeigh, I, ‘Freedom of Religion: Public/Private, Rights/Wrongs’ in Hill, M (ed), Religious Liberty and Human Rights (Cardiff: University of Wales Press 2002), pp 128–158.Google Scholar
64 See Barker, CR, ‘Religion and Charity Law’ in (1999) Juridical Review, pp 309–310;Google ScholarQuint, F and Spring, T, ‘Religion, Charity Law and Human Rights’ in (1999) 5, Issue 3, Charity Law and Practice Review, pp 163–186;Google ScholarLuxton, P, The Law of Charities (Oxford: Oxford University Press 2001), pp 44–49;Google ScholarEdge, PW and Loughrey, JM, ‘Religious Charities and the Juridification of the Charity Commission’, in (2001) 21 Legal Studies, pp 51–64.CrossRefGoogle Scholar
65 Human Rights Act 1998, s 6(1): ‘It is unlawful for a public authority to act in a way which is incompatible with a Convention right’. As has been stated, ‘The Charity Commissioners are without doubt a “public authority” and the Act will have some impact on the way they operate’: Luxton, P, The Law of Charities, op cit p 39. A different, more debatable question is whether charities have the characteristic of public authorities or carry out functions of a public nature under section 6. What is certain is that it is not possible to establish general criteria on this point which are valid for all types of charities; the answer depends on their functions and characteristics. About this point, see P Luxton, The Law of Charities, pp 39–41; D Oliver, ‘Functions of a Public Nature under the Human Rights Act’ in (2004) Public Law, pp 329–351; M Sunkin, ‘Pushing Forward the Frontiers of Human Rights Protection: The Meaning of Public Authority under the Human Rights Act’ in (2004) Public Law, pp 643–658.Google Scholar
66 Re Watson decd [1973] 3 All ER 678 at 688, [1973] 1 WLR 1472 at 1482–1483, per Plowman J. Of course, without detriment to this assertion the existence of a public benefit must be demonstrated in each particular case: see Gilmour v Coats [1949] AC 426, [1949] 1 All ER 848, HL.Google Scholar
67 On this question, see Evans, C, Freedom of Religion under the European Convention on Human Rights (Oxford: Oxford University Press 2001), pp 133–167.CrossRefGoogle Scholar
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